Friday, October 27, 2017

ARTICLE: Service of Process: Pitfalls Can Be Avoided by Good Faith Efforts

The below article written by my associate attorney Stephen T. Kopko and myself recently appeared in the October 17, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission.       

Service of Process: Pitfalls Can Be Avoided by Good Faith Efforts

Stephen T. Kopko and Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly

As practitioners, attorneys sometimes tend to overlook the small, mundane, but otherwise extremely important tasks. However, this neglect can lead to a variety of troubles in your practice and for your client. One example in this regard pertains to the task of perfecting service of original process on a defendant, particularly when this is attempted close to the expiration of the applicable statute of limitations. If a plaintiff does not follow through and make a good faith effort to serve original process in a timely manner, then there is a serious risk that the action may be dismissed.

According to Pa. R.C.P. 401(a), original process shall be served in the commonwealth by the Sheriff's Department within 30 days after the issuance of a writ or the filing of a complaint, Pa. R.C.P. 401(a).

The plain language of Rule 401 prevents a plaintiff from commencing an action to protect the statute of limitations, and yet delay the service of the notice of the litigation to the defendant, thereby undermining the purpose of the statute of limitations, as in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976). The purpose of the statute of limitations is to expedite litigation and thereby discourage any delay of the presentation of stated claims which may greatly prejudice the defense of such claims, as in Insurance Company of North America v. Carnahan, 284 A.2d 728, 729 (Pa. 1971). If the defendant is not promptly notified that an action has been commenced against him or her, this purpose of the statute of limitations cannot be fulfilled, as in McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005).

You Can't Do Nothing

The Pennsylvania Supreme Court has clarified the relevant legal principles regarding perfection of service of original process over several notable decisions. In Lamp v. Heyman, the Supreme Court held that service of original process completes the process of tolling the statute of limitations. The Supreme Court in Lamp reasoned that there was "too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service."
Accordingly, the Lamp court held that "a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion."

You Must Try Something

The Pennsylvania Supreme Court revisited its holding in Lamp in the case of Farinacci v. Beaver County Industrial Development Authority, 511 A.2d 757 (1986). The Lamp holding was extended in Farinacci to require that plaintiffs not only refrain from stalling litigation that was commenced, but to also demonstrate a "good-faith effort to effectuate notice of commencement of the action."

After these decisions by the Pennsylvania Supreme Court in Lamp and Farinacci, the Superior Court and the Commonwealth Court split on the issue of what constituted a good faith effort to complete service. After this split of authority arose, the Supreme Court clarified the good faith requirement in its more recent decision in the case of McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005).

The Supreme Court in McCreesh clarified the Lamp/Farinacci decisions in regards to timely service of original process in order to toll the statute of limitations. According to the Supreme Court in McCreesh, a case will not be dismissed under Lamp where:

There has been a good-faith effort to obtain service despite technical noncompliance with the Rules of Civil Procedure, and the defendant has received actual notice of the original process,

Further Clarification of the Rules on Service

After McCreesh, the Superior Court of Pennsylvania further clarified the good faith/actual notice requirement outlined by the Pennsylvania Supreme Court's decisions in Lamp, Farinacci and McCreesh. In Englert v. Fazio Mechanical Services, 932 A.2d 122 (Pa. Super. 2007) the Superior Court held that it is the plaintiff's burden to prove that the actions taken to complete service were reasonable. In so ruling, the Englert court held that even acts that are unintentional that work to delay a defendant's notice of the action may constitute a lack of good faith on the part of the plaintiff with respect to service of process, as in Englert, 932 A.2d at 124 citing Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004).

The plaintiffs in Englert were injured in an auto accident and filed a writ of summons well before the statute of limitations was set to expire. The plaintiffs in Englert sent the writ of summons to the sheriff for service. However, the sheriff's office was unable to complete service of the writ because the defendant had moved. Even though the plaintiff had the resources to check on the status of service, plaintiff's counsel did not learn that the Writ was not served until after the statute of limitations expired. The defendant in Englert filed preliminary objections to the complaint because of the lack of service of original process.

According to the Superior Court in Englert, "it is not necessary that the plaintiff's conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply." The Superior Court in Englert reiterated that simple neglect and mistake to fulfill the responsibility to see that the requirements for service are carried out may suffice to bring the rule in Lamp to bear.

While the plaintiff's attorney may have been previously in communication with the defendant's insurance carrier and her insurance defense counsel, such conduct is not sufficient under Pennsylvania law to provide actual notice to the party defendant, Cynthia Zolner, of the formal commencement of the lawsuit as required by the Pennsylvania Rules of Civil Procedure and Pennsylvania law, as in Ferrara v. Hoover, 636 A.2d 1153, 1153 (Pa. Super. 1994).

In Ferrara v. Hoover, the Pennsylvania Superior Court held that notice to an insurance company or insurance company's lawyer of the filing of original process is insufficient to toll the statute of limitations when there has been no good faith effort on the part of the plaintiff to serve process on the actual party defendants. Specifically, the Ferrara court wrote, "We find no merit in the contention communication between plaintiff and defendants' insurance adjuster serves as a substitute for actual service of process."

The Ferrara court more specifically found that the providing of pleadings to a defendant's insurance adjuster does not act as a substitute for proper service of original process upon the proper party defendant. The court in Ferrara stated that, even assuming that notice of a lawsuit was provided to the defendant's insurance carrier, actual notice of a potential for litigation is not enough because the Rules of Civil Procedure and Pennsylvania law pertaining to proper service require that the party defendant must have actual notice of the commencement of the lawsuit.

As with a quarterback, a pitcher, a golfer or with a jump shot, the "follow through" may be the most important action taken by the athlete in each of their respective sports. The "follow-through" motion guides the direction of the ball and increases the athlete's chances for success. Similarly, "following through" with the tasks associated with completing original process guides the new legal action and ensures that the case will be allowed to proceed. The cases of Lamp v. Heyman and its progeny analyzed above remain a consistent reminder that an action can be dismissed if the "follow through" on service of process is instead neglected. •

Wednesday, October 25, 2017

Motion to Sever and Stay Post-Koken Bad Faith Claim Denied in Middle District of Pennsylvania

In his recent decision in the case of Newhouse v. GEICO, No. 4:17-CV-00477 (M.D. Pa. Sept. 18, 2017 Brann, J.), US Middle District Judge Matthew W. Brann denied GEICO’s Motion to Sever and Stay the bad faith portion of a post-Koken claim filed by a Plaintiff also asserting a UIM claim.  

The court declined to sever or bifurcate the UIM and bad faith claims after finding that the Plaintiff would utilize similar evidence and testimony for both claims.   The court also rejected the carrier’s argument that it would be prejudice by a lack of bifurcation because, relative to the bad faith action, the carrier will have to present information on how it values a claim before the jury assesses liability and damages in the UIM portion of the claim.   

Anyone wishing to review a copy of this decision may click this LINK.

Source:  Article “GEICO Can’t Halt Bad-Faith Claims in UIM Case, Court Says” By: PJ D’Annunizio.   The Legal Intelligencer (September 22, 2017).    

Summary Judgment Granted on Federal Middle District Homeowner's Bad Faith Claim

In what may be one of the first post-Rancosky decisions (but in which Rancosky was not cited), summary judgment was granted on a homeowner's insurance bad faith claim in the Federal Middle District Court case of Davenport v. USAA Casualty Ins. Co., No. 1:16-CV-2378 (M.D.Pa. Oct. 11, 2017 Jones, J.).

The court noted that, although there were disputes between the parties over the coverage benefits available under the policy, the homeowners had not presented any clear and convincing evidence of bad faith.  With respect to the property damage estimates generated by the carrier for the fire losses incurred, the court noted that the courts have not recognized bad faith where an insurer makes a low but reasonable estimate of the insured's losses.

Overall, the court found that the Plaintiffs had not provided clear and convincing evidence that USAA acted in bad faith in the adjustment of the claim.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Brigid Q. Alford of the Harrisburg, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Monday, October 23, 2017

Scope of Trial Court's Authority to Limit Openings, Examinations, and Closings at Trial Reviewed

In a recent decision in the case of Horst v. Union Carbide Corporation, No. 15-CV-1903 (C.P. Lacka. Co. Oct. 11, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the scope of a trial judge's authority to impose limitations upon the length and number of opening statements, closing arguments, and examinations of witnesses pursuant to Pa. R.C.P. 223 and 225.  

This asbestos action was proceeding under allegations that the Plaintiff allegedly developed malignant mesothelioma as a result of the Plaintiff’s alleged exposure to asbestos-containing products that were allegedly manufactured or sold by the Defendants while the Plaintiff was employed by his father’s heating, ventilation, air conditioning, and plumbing business.  

The court noted that it had issued this Order imposing limitations on the trial proceedings after counsel had initially represented to the court that the trial of this matter would last three (3) weeks after which the Defendants more recently revealed to the court that four (4) trial weeks or twenty (20) days, would be required to present the Defendants' case only.  

Accordingly, the court noted that, in order to ensure that the trial would be completed within the allotted time that was originally fixed based upon the initial representations of counsel, the court entered an Order imposing limitations upon the length and number of the opening statements, closing arguments, and examination of witnesses.   In this decision, the court denies the Motion for Reconsideration filed by eleven (11) of the twelve (12) Defendants in which the Defendants requested that all of eleven (11) participating Defendants be granted the opportunity through their respective counsel to present opening statements, closing arguments, and to examine all non-expert witnesses called by the Plaintiff.  

After reviewing Pennsylvania law in support of its decision and authority to limit certain aspects of trial proceedings, the trial court granted in part and denied in part the Motion for Reconsideration.   The Motion for Reconsideration was granted to the extent that the prior Order of Court was amended to provide that all Defendants shall be allotted and aggregated a period of 180 minutes within which to present and conclude all opening statements on behalf of Defendants as well as a same amount of time within which to complete closing arguments for all Defendants.   In all other respects, the Defendants’ Motion for Reconsideration was denied.  

Anyone wishing to read this Opinion may click this LINK.

Friday, October 20, 2017



Legal writing courses in law school wrongfully kill creativity in brief writing in favor of arid, brittle, crisp statements of the law as applied to colorless adjective-free facts. The result is lifeless law review writing, and who seeks out law review articles to read after they are written? No one.
So be conversational in your writing and bring the story of your case to life within your argument with descriptive and carefully chosen words and concise sentences. Let your recitation of the facts flow as if you are relaying the story of the case to a friend in a conversation. Leave out slang words, but don't be overly formal either. Use your natural speaking voice in your writing.
Being conversational includes being polite. Know your place and never tell a judge that he or she "shall" or "must" accept your position. Rather, soften such statements by instead writing that "it is respectfully submitted" that the rule of law supports the result requested.

Tuesday, October 17, 2017

Pennsylvania Superior Court Upholds Exclusion of Coverage for Resident Non-Family Members Not Listed On Auto Policy

In the case of Safe Auto Insurance v. Oriental-Guillermo, 2017 Pa. Super. 297 (Pa. Super. Sept. 18, 2017) (Dubow, J., Solano, J., and Ford Elliot, P.J.E) (Majority Op. by Dubow, J.) (Dissenting Op. by Ford Elliot, P.J.E.), the Pennsylvania Superior Court ruled that a automobile insurance policy issued by Safe Auto that excluded coverage for non-family members who live with the vehicle owner but who were not specifically included under the policy is enforceable under Pennsylvania’s Motor Vehicle Financial Responsibility Law.  

The panel essentially ruled that the policy was consistent with the MVFRL because that statute places the burden of making sure a driver is insured on the vehicle owner, and not upon the insurance companies.

The court rejected the Plaintiff’s argument that Safe Auto’s provision violated the mandate of the MVFRL of having an owner ensure that all drivers are covered by insurance.   The court noted that the MVFRL does not require a shifting of the burden to the insurance companies to discover the identities of resident, non-family member insureds who may have access to an insured’s vehicle.  
Rather, the court felt that that burden was more appropriately placed in the hands of the insured.  
The Majority Opinion written by Judge Dubow can be viewed HERE.

The Dissenting Opinion by Judge Ford Elliott can be viewed HERE.

Source: Article “Superior Court Rules Unlisted Resident Driver Exclusion is Okay” by Max Mitchell. The Legal Intelligencer (September 22, 2017).  

Monday, October 16, 2017

Current Law of Intentional Infliction of Emotional Distress Claim Reviewed

In his recent decision in the case of Nehme v. Churla, 2017 W.L. 4124460 (C.P. Lacka. Co. Sept. 8, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the current status of the requirements of a claim for intentional infliction of emotional distress under Pennsylvania law.
The issue arose in a case in which a Plaintiff commenced an action against his former paramour seeking the repayment of money he loaned to the Defendant during the pendency of her divorce proceedings against her ex-husband.  The Plaintiff also sought the return of an engagement ring.  
According to the Opinion, the Defendant asserted a counterclaim for intentional infliction of emotional distress. The Plaintiff filed a demurrer to that claim on the grounds of legal insufficiency.  
After reviewing the current status of the law of intentional infliction of emotional distress in Pennsylvania as applied against the facts of the case, the court sustained the demurrer to the Defendant’s counterclaim. 

Anyone wishing to read this Opinion may click this LINK.

Friday, October 13, 2017

Pennsylvania Defense Institute Drafts Proposed Points for Charge for Products Liability Cases

Here is a LINK to a set of Products Liability Suggested Standard Jury Instructions drafted by members of the Products Liability Committee of the Pennsylvania Defense Institute and which has been published in the October, 2017 edition of Counterpoint, a PDI publication.   The Committee was led in this regard by William J. Ricci, Esquire, C. Scott Toomey, Esquire, and James M. Beck, Esquire.
These suggested instructions were drafted in response to the proposed instructions for products cases issued in the summer of 2016 by the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.
The debate over proper instructions for products cases arises out of the differing opinions as to the import and analysis of the Tincher v. Omega Flex case.

Bad Faith Statute Applies to Insurers Not Insurance Agents

In the case of Fertig v. Kelley, No. 16-CV-4801 (C.P. Lacka. Co. Sept. 27, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted judgment on the pleadings in favor of an automobile insurance agent named as a party defendant in a Post-Koken bad faith suit.

The decision was based, in part, on the court's reaffirmation of the law providing that the bad faith statute under 42 Pa.C.S.A. Section 8371 only applies to an "insurer" and not an insurance agent.

To review this decision, click this LINK.

Wednesday, October 11, 2017

Personal Jurisdiction Issues Addressed by Third Circuit (Not Precedential)

In the case of Barth v. Walt Disney Parks & Resorts U.S., Inc., No. 16-3593 (3d Cir. Sept. 8, 2017 Hardiman, Chagares, and Jordan, J.J.) (Op. by Hardiman, J.)[marked "Not Precedential"], the Third Circuit Court of Appeals affirmed the trial court’s granting of a Motion to Dismiss the case against the Defendant where the court agreed that the Defendants were neither incorporated nor had any a principal place of business in Pennsylvania and were, therefore, not properly subject to general personal jurisdiction concerning an injury that took place in another state.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Reed Smith law office in Philadelphia for bring this case to my attention.

Monday, October 9, 2017

Trial Court Addresses Liability of Business for Car Accident on Adjoining Road After Patron Drives Off Premises

In its decision in the case of Zurick v. Basile Italian Delight Restaurant and Pizzeria, No. S-1571-2016 (C.P. Schuylkill Co. Miller, J.), the court denied Preliminary Objections filed by a landowner Defendant who asserted that it owed no duty to a Plaintiff injured in a motor vehicle accident that occurred after a vehicle left the parking lot area of the Defendant's restaurant and was involved in an accident with a vehicle on the adjoining roadway.  

The Defendant landowner had asserted that no duty was owned to the Plaintiff under the case of Newell v. Montana West, Inc., 154 A.3d 819 (Pa. Super. 2017), in which the Superior Court ruled, in a case of first impression, that a business does not have a duty to protect its invitees against the dangers associated with adjoining roadways.   The Newell case involved a pedestrian who was struck and killed by a car after he left a show at the defendant’s premises.

The court in Zurick limited the Newell holding to accidents involving pedestrians and ruled that the driveway immunity provisions of the Construction Code Act, 35 P.S. §7210 502 (b)(4)(1) and/or the Municipalities Planning Code, 53 P.S. §10508(6), give rise to a statutory duty upon landowner Defendants related to the creation of a driveway on its premises and/or the failure to maintain such driveway so as not to interfere with the safe travel on the abutting roadway.  

Anyone wishing to review a copy of this decision may click this LINK.

Fundraising Gala for Lackawanna Pro Bono

Friday, October 6, 2017



Good legal writers take pride in their writing, care about their end product, and desire that the position put forth in the writing be accepted.   If the writer lacks any of these feelings about the written task before them, it will surely be evidenced in the writing.

In other words, if you don’t care about your written product, why should anyone else care to read it.

So break out that red pen and edit your writings and then re-edit them.  Then re-edit.  

Taking pride in your written submissions will naturally result in a better letter, or a more compelling brief that is free from errors and cohesive in presentation.  

Taking pride in your writing might even be the difference between winning or losing on the issue presented.

Thursday, October 5, 2017

Preliminary Objections Against Agency Allegations in Medical Malpractice Complaint Denied

In the case of Chairge v. Geisinger Community Medical Center, No. 2017 - CV - 1851 (C.P. Lacka. Co. Sept. 22, 2017 Nealon, J.), the court addressed preliminary objections in a medical malpractice action in which the defendants asserted that a plaintiff's agency allegations must be stricken unless the Complaint identifies the defendants' actual or ostensible agents by name, sets forth those agents' authority, and avers how the agents' alleged conduct fell within the scope of that authority or was otherwise ratified by the defendant principal.

The preliminary objections were denied after the court emphasized that the Pennsylvania Superior Court ruled three years ago in the case of Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014) that a plaintiff is not barred from asserting a vicarious liability claim against a defendant simply because the alleged agent was not named in the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Scope of Expert Testimony in a Medical Malpractice Action Reviewed

In its recent decision in the case of James v. Albert Einstein Medical Center, 2017 Pa. Super. 293 (Pa. Super. Sept. 12, 2017 Blatt, Dubow, and Ransom, J.J.) (Op. by Blatt, J.), the Pennsylvania Superior Court affirmed the entry of a verdict in favor of a Defendant in a medical malpractice action.   In one decision of note in this case, the court found that experts in one area of medicine are qualified to address other areas of medicine covered by other specialties where the medical specialties overlap.  

The Pennsylvania Superior Court in this decision also reiterated the rule that Pennsylvania does not recognize the right of filial consortium.  Accordingly, the court found that the mother of the decedent was properly precluded from testifying about her pain and suffering in a wrongful death case.  

Anyone wishing to review a copy of this decision may click HERE.

I send thanks to Attorney James M. Beck of the Reed Smith law office in Philadelphia for bring this case to my attention.

Tuesday, October 3, 2017

Federal Court UIM Bad Faith Claim Dismissed Under Iqbal/Twombly/Fowler Standard of Review

In another decision in the case of Myers v. State Farm Mut. Auto. Ins. Co., No. 17-3509 (E.D.Pa. Sept. 6, 2017 Surrick, J.), the court granted the carrier's motion to dismiss the Plaintiff's bad faith claim filed against a UIM carrier under an Iqbal/Twombly/Fowler analysis.

The court found that the Plaintiff's Complaint lack the foundation of factual allegations in support of the bad faith claim.  The Plaintiff had generally asserted that the carrier failed to properly investigate the claims presented and failed to make reasonable offers.

The court found that the Complaint was "long on conclusions regarding the Defendant's conduct, but it fails to set forth any explanations or descriptions of what Defendant actually did."  Op. at p. 6.  More specifically, the court found that there were no factual allegations on how the Defendant failed to investigate the claim or why the offers were unreasonable.

In granting the motion to dismiss, the court did grant the Plaintiff leave to amend the Complaint.

Anyone wishing to review this decision may click HERE.

I send thanks to Attorney Lucille Bitterman from the Philadelphia law firm of Goldberg, Miller & Rubin for bringing this case to my attention.  Attorney Lori Miller of that firm was the handling defense attorney.

Motion To Remand UIM Claim Back to State Court Denied

In the case of Myers v. State Farm Mut. Auto. Ins. Co., No. 17-3509 (E.D.Pa. Aug. 21, 2017 Surrick, J.), the court denied a Plaintiff's motion to remand a federal court UIM claim back to the Philadelphia Court of Common Pleas.

In its Motion for Remand, the Plaintiff contended that the claims presented did not meet the $75,000 federal court jurisdictional limit.

After reviewing the current status of federal law pertaining to motions for remand against the allegations in the Plaintiff's Complaint, the court noted that the record before the court indicated that the Plaintiff could potentially realize a result in excess of $75,000.

As such, the Plaintiff's motion to remand was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Lucille Bitterman from the Philadelphia law firm of Goldberg, Miller & Rubin for bringing this case to my attention.  Attorney Lori Miller from that firm was the handling defense attorney.